Employer liability for defamation claims based on a reference

Q. Our company constantly receives calls from prospective employers requesting references for our former employees. Recently, one of our receptionists told an inquiring employer that a former employee was terminated for falsifying his expense reports. The former employee now has threatened to file a lawsuit against us for defamation. Do we have any exposure?

A. Possibly. In Georgia, in order to establish a claim for defamation, a former employee must demonstrate, among other things, that the former employer published a false statement about him or her. Such communications are presumed to be privileged (and therefore not actionable), but this privilege is overcome by evidence of malice or bad faith on the employer’s part.

Likewise, oral defamation—slander—committed by an employer is generally not chargeable to the employer in the absence of evidence that the employer specifically directed the employee to make the defamatory statement in question.